Teamsters, Local 856

National Labor Relations Board - Board Decisions

Mar 21, 1972

195 N.L.R.B. 967 (N.L.R.B. 1972)

TEAMSTERS, LOCAL 856 967
Freight Checkers , Clerical Employees and Helpers
Union, Local No . 856, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America and Industrial Employers and Distribu-
tors Association . Cases 20-CB-2370 and 20-CB-
2416
March 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
complaint in Case 20-CB-2416 issued April 22, 1971, based
on an original charge filed February 8, 1971, alleges violations
of Section 8(b)(1)(B) of the Act by virtue of certain claimed
acts of violence and threats which in terms are the same as
those set forth in Case 20-CB-2370. An order consolidating
these cases and notice of hearing thereon was issued April 22,
1971. The issues are whether the acts alleged occurred and if
so whether or not they would constitute violations of the
sections of the Act alleged. Upon the entire record, including
my observation of the witnesses, and after due consideration
of the briefs filed by the General Counsel, the Charging Party,
and the Respondent I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTY
On October 20, 1971, Trial Examiner Allen Sin-
sheimer, Jr., issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and briefs. The Re-
spondent filed no exceptions, but filed an answering
brief to the other parties' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in the light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions,' and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Freight Checkers, Clerical Employees and
Helpers Union, Local No. 856, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, its officers, agents, and representa-
tives, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
' We do not adopt the Trial Examiner's reasons for refusing to find
additional violations of Section 8(b)(1)(B) based on the Respondent's mis-
conduct toward Gallo Co. Supervisors Lovenbury and Medcalf (the Trial
Examiner reasoned that the Respondent did not know of their supervisory
status at the time). Since the additional allegations, including that based on
the November 23 incident involving Lovenbury, are cumulative and would
not affect the scope of the Order, we find it unnecessary to reach or consider
these allegations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding
was heard at San Francisco, California, on June 29 and 30,
1971. The complaint in Case 20-CB-2370 issued on February
28, 1971, based on an original charge filed November 24,
1970, alleges violations of Section 8(b)(1)(A) of the Act by
virtue of certain claimed acts of violence and threats. The
The Charging Party, Industrial Employers and Distribu-
tors Association, herein called "Association" is a voluntary
association of employers engaged inter alia in nonretail wine
and liquor distribution, with a place of business in San Fran-
cisco, California. At all times material IEDA has existed for
the purpose among others of representing its employer-mem-
bers including Gallo Sales Company, Inc., herein called Gallo
in collective bargaining and in negotiating and administering
collective-bargaining agreements with various labor organi-
zations including Respondent. During the past fiscal year its
employer-members in the State of California, in the course
and conduct of their business operations, collectively pur-
chased and received goods and products valued in excess of
$50,000 which were shipped to them directly from points
outside the State of California. At all times material IEDA
and its employer-members including Gallo have constituted
an employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and I so find.
II THE LABOR ORGANIZATION INVOLVED
Freight Checkers, Clerical Employees and Helpers Union,
Local 856, International Brotherhood of Teamsters,
Chauffuers, Warehousemen and Helpers of America, herein
called Respondent (or Union) is a labor organization within
the meaning of the Act and I so find.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
As set forth the Association represents employer-members
including Gallo in collective bargaining and administering
bargaining agreements with various unions including Re-
spondent. Respondent represents among others clerical em-
ployees of various businesses but not the sales and office
clerical employees of Gallo.'
William E. Briggs is a nonsupervisory employee of the
Distributors Association and a Gallo representative for the
purposes of collective bargaining and the adjustment of griev-
ances. Charles A. Lovenbury and Stephen Medcalf are Gal-
lo's supervisors and representatives for the adjustment of
grievances. William Dykstra is the business agent and a rep-
resentative of Respondent.
One of the issues is whether or not Dykstra knew Briggs
prior to the incidents involved herein. Briggs testified that he
first met Dykstra during the negotiations of the present
master liquor collective-bargaining contract when he was in-
troduced to Dykstra in either late 1968 or early 1969. Briggs
testified he again dealt with Dykstra at a grievance meeting
' Gallo does have union contracts covering its drivers and warehouse.
men
195 NLRB No. 171
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in March 1969 involving the Mutual Grocery Company also
represented by the Association. According to Briggs, the
meeting lasted at least an hour and both he and Dykstra
participated in and spoke during that time with respect to the
matter involved. Briggs testified that he also saw Dykstra
following a negotiation session involving certain employers
and the Union at the offices of Local 856, when he saw
Dykstra in the outer office and stopped to visit with him at
which time according to Briggs they referred to each other as
"Bill and Bill ." 'Briggs further testified that on numerous
occasions he spoke with Dykstra over the telephone with one
call involving the Central Warehouse Company which oc-
curred in April 1969. Dykstra testified that except for a tele-
phone conversation about the Central Warehouse he did not
recall having any dealings with Briggs prior to the altercation
of November 20, 1970, discussed hereafter. On the morning
of November 20, prior to this altercation, Briggs was in the
office of Arthur Anderson, president of Gallo, along with
Lars Runsten, a visitor from Sweden, and a guest in the
Anderson home. Runsten testified in a deposition taken in
connection with another proceeding' that Briggs had re-
marked that he saw a man whom he recognized outside with
some pickets and specifically named Dykstra.
Based on my evaluation of both the witnesses hereto as well
as the other incidents and matters set forth hereafter I am
crediting Briggs' testimony supported by Runsten that Briggs
had previous dealings with Dykstra. I find accordingly that
Dykstra either had or should have had some recollection of
Briggs. Dykstra admitted that he knew the Distributors As-
sociation, in fact had represented Gallo and stated that he had
no objection to dealing with the Distributors Association.
On November 19, President Anderson learned that the
Gallo premises were to be picketed the following day. Ander-
son accordingly planned to get his trucks out an hour early
on November 20. Briggs, -Lovenbury, and Medcalf were
notified and asked to come in early that morning.
B. The Facts
1. The November 20 incidents
On the morning of November 20, the above representatives
and Runsten arrived at the Gallo premises about 7:00. The
management representatives proceeded to get all but two
trucks out on the road before 7:30. About 7:45, Dykstra and
three or four other pickets3 arrived at the premises and
parked in an area between the east entrance and the east gate.
Lovenbury saw this, walked over, and asked what they were
doing and they said they were picketing. Lovenbury told
them to get off private property and stay out in the street.
Dykstra said someone whom he identified as either Loven-
bury or Medcalf told him they were illegally parked. Dykstra
testified he thought they were not on private property and
were legally parked. The pickets then approached the east
gate which is about 129 feet from the street. Briggs followed
by Runsten left Anderson's office and proceeded to the east
gate. Lovenbury went through the warehouse to the east gate.
Dykstra and the three pickets along with Briggs and Loven-
bury arrived at the east gate about the same time. One of the
last of the Gallo trucks driven by employee Richard Brown
was pulling up to the east gate. Dykstra stepped forth waving
a picket sign, and according to the credited testimony of
1 This deposition was received herein on the basis that Runsten had left
the country and returned to Sweden and was unavailable , and pursuant to
the joint stipulation of all parties that it be received
' The picketing was authorized by Rudy Tham, secretary-treasurer of
Respondent.
Briggs, corroborated by Lovenbury,' told the driver, "You
can't go through here. Don't you know we have a hassle going
on with this company."5 Runsten had followed Briggs and
testified that he was about 10 yards away at the commence-
ment of the events herein and possibly a little closer there-
after. Runsten had brought a camera with him for the pur-
pose of taking pictures of American industry and when this
incident occurred decided to take pictures of it. Accordingly
there are in the record six pictures taken by Runsten. These
admittedly do not reflect all of the action because they are still
pictures but they are of substantial probative value in evaluat-
ing and determining the course of events, particularly when
coupled with testimony.
The truck at this time was about at the gate. According to
Lovenbury he then told the driver "to back the truck up and
take it around to the other gate." Briggs testified he heard
Lovenbury tell the driver, "Take the truck back in the yard,"
that he immediately said, "Charlie, tell the truckdriver to do
whatever he thinks is right" and then turned to Dykstra and
said, "Bill is there anything that I can do for you?"6 Dykstra
testified he heard either Lovenbury or Medcalf tell the driver,
"Back it up and go back to the dock." Dykstra testified "then
the person reached and started to close the gate" and that "he
closed the gate." After this according to Dykstra, Briggs said
"No, let him make up his own mind, don't do that." Neither
pictures, testimony, nor subsequent events support Dykstra's
statements as to closing a gate at this time and it is also
inconsistent with Dykstra's subsequent testimony as to his
version of how the altercation started as set forth, post
At this point, testimony of Dykstra differs from that of
several witnesses for the General Counsel as to what oc-
curred. Dykstra had been moving away from in front of the
truck and was near Briggs according to Lovenbury, Medcalf,
and Runsten. From the pictures and the testimony of Briggs,
it is evident that Briggs had been standing with his hands in
his pockets, his glasses on, and a pipe in his mouth . Briggs'
testimony is that right after his last statement, Dykstra struck
him on the left side of his face with his right fist knocking
Briggs' pipe out of his mouth and his glasses off and throwing
him backwards, that then Dykstra again immediately struck
him right on the same side of the face, and that thereupon to
protect himself Briggs moved forward and grabbed Dykstra
by the coat and tie stating, "Bill, don't you know who I am,
I'm from the Distributors Association." Briggs said that
Dykstra then began pounding him on the shoulder and back
and that he put his head against Dykstra's stomach for pro-
tection and held on to his sides with his arms and kept on
repeating, "Bill, don't you know who I am" and that Dykstra
was swearing and continued to hit him. Finally after moving
some 15 feet or more in this posture that Dykstra told Briggs
to let go of Dykstra's coat which Briggs had been holding.
According to Briggs he could hardly stand, was wobbly and
gasping for air and he again put his head against Dykstra's
stomach and hung on and that Dykstra hit him some more.
There is also testimony that while this was occurring Lo-
venbury and Medcalf tried to step in to break up the alterca-
tion and that at least two of the other pickets were, involved
in the action with Lovenbury testifying that one of them
Dykstra's testimony is somewhat vague as to this. However, it appears
from a picture he was holding a sign and at one point he testified, "We
showed them the sign and he stopped his truck "
' The picket sign erroneously referred to a different local but the parties
all stipulated that it was intended to apply to Local 856
6 Briggs testified that his reason for making this statement to the driver
was that if he took the truck back and didn't go out on his own the company
would have to pay for his services whereas if he decided by himself not to
go out that it would not have to do so. It appears from this that Briggs only
heard the first part of Lovenbury's instructions to the driver
TEAMSTERS, LOCAL 856 969
grabbed him and threw him to the ground. As for the partici-
pation of others this will be considered hereafter.
Dykstra's version is that he was backing up and to the right
to get away from the truck in case it started up' when he
bumped into someone whom he didn't see. According to
Dykstra then Briggs spun him around and grabbed him by
the tie and that it was following this, in self-defense, that he
openhandedly swung at Briggs. Briggs as set forth testified
that he moved in and grabbed Dykstra by the coat and tie but
that this was to protect himself after Dykstra had struck him
twice.
Briggs' version of the events is supported in part by the
pictures although at one point after the asserted second blow
a picture shows him standing with his fist clenched about
three or four feet from Dykstra. This is claimed by Respond-
ent to show that Briggs' story is not precisely correct, since
Briggs stated that he didn't have his fist closed. However I
view this as one of the variations that may occur in trying to
reconstruct events such as occurred herein, particularly when
considered in the light of all the evidence which will be dis-
cussed.
First, the pictures do not indicate Dykstra would be in a
position to have backed into Briggs as claimed. Second, the
testimony of Lovenbury, Medcalf, and Runsten all of whom
saw the events from varying positions was essentially the
same as Briggs, that Dykstra had commenced the action by
striking Briggs. Third, it appears unlikely that someone with
his hands in his pockets, his glasses on, and `a pipe in his
mouth would start to grab someone else in this fashion.
Fourth, this becomes particularly evident when it is-realized
that Briggs is about 6 feet, 1 inch and weighs about 195
pounds while Dykstra is 6 feet, 4 inches and weighs 30Q
pounds. Further, with respect to use of fists, Dykstra stated
that he had been using an open hand. However one of the
pictures which appears to show Briggs with _his head about
Dykstra's stomach and chest and his arms around him, shows
Dykstra with- a closed, fist which conflicts with- Dykstra's
testimony in this respect. It also supports Briggs' testimony
as to his position namely, with his head up against Dykstra's
stomach or chest and trying to hold on so that he didn't get
hit. Finally, although there were several other union=pickets
and two of them were identified as participating in the melee
either as pulling off people or attempting to hit someone, none
of these including Marty Franklin or Robert Rubi testified at
the hearing. Based on the foregoing, all of the evidence and
my observation of the witnesses I conclude that the events
occurred substantially as testified to by Briggs and verified by
both the pictures and the other witnesses and that Dykstra
initiated the incident by hitting Briggs without justiable
provocation.
At the time of the occurrence Brown, the driver, was in the
cab which he moved backwards some distance while the alter-
cation was occurring. Also based on the uncontradicted tes-
timony of Briggs, Lovenbury, and Medcalf which I credit, I
find that a number of warehousemen were at a warehouse
door from which they could observe the incident as it oc-
curred. It is accordingly clear that Respondent thereby vi-
olated Section 8(b)(1)(A) and I so find.'
' Evidently in conflict with his testimony that the gate had been closed
a That assaulting or threatening a supervisor or management representa-
tive in connection with picketing where employees are present or in the
vicinity restrains and coerces employees in violation Of Sec 8(b)(1)(13), see
G & H Towing Co., 168 NLRB 589; United Mine Workers (Chapel Coal
Co.), 160 NLRB 913, and Furniture Workers Local 309 (Smith Cabinet
Manufacturing Co., Inc.), 81 NLRB 886.
Lovenbury and Medcalf endeavored to break up the con-
flict but with no effect, Lovenbury being 5 feet, 11 inches and
170 pounds and Medcalf being 5 feet, 11 inches and 145
pounds. Lovenbury testified that somebody grabbed him by
the sleeve and threw him to the ground identifying him as a
little fellow with a beard and a black jacket whom Dykstra
testified was Robert Rubi, a picket.- According to Lovenbury
he saw the same person hit Briggs. This testimony is uncon-
tradicted and I credit Lovenbury as to both seeing Briggs hit
by the picket (Rubi) and also himself thrown to the ground.
It is difficult to evaluate from the record the exact sequence
of events with regard to the relationship of Lovenbury, Med-
calf, and the pickets including Franklin and Rubi throughout
the conflict. Further such resolution is unnecessary to any
order or remedy herein.
Following the cessation of the altercation between Dykstra
and Briggs, Medcalf testified that he and Dykstra proceeded
toward the gate entrance and that he was talking to Dykstra
and telling him to "Get the Hell out." Medcalf said he
grabbed the gate with both hands to roll it closed, According
to Medcalf, Dykstra was saying some nasty words and then
"Karate chopped" him on the top' of the wrists with great
force, hurting Medcaj Dykstra denied the occurrence. In
view of the preceding-events, and also from my observation
of the witnesses, I am crediting Medcalf's testimony. Al-
though the record isn't clear as to whether persons or em-
ployees saw this event, it occurred immediately after the
preceding events and Medcalf testified that word of it did get
around the plant. The foregoing is sufficient to find the Re-
spondent thereby also violated Section 8(b)(l)(A)'
The issue as to applicability of 8(b)(1)(B) will be considered
hereafter. The General Counsel claims the action directed to
Lovenbury and Medcalf in connection with the Briggs-Dyk-
stra altercation involved action directed to supervisors as well
as the "chop" on the arm that Medcalf received while closing
the 'gate. The General Counsel argues that commencing with
the time when Dykstra was first told by Lovenbury to get off
the premises and the subsequent events which occurred, that
Dykstra was aware that Lovenbury and Medcalf were either
supervisors or management representatives and therefore re-
sponsible for his conduct to them as such. Dykstra denies
knowing that Lovenbury and Medcalf were supervisors or
management representatives at, that time. There is nothing
other than the events to contradict such denial and I credit
Dykstra's testimony 'in this respect.
2. The November 21 incident
On the morning of Saturday, November 21, Lovenbury
was at the Gallo premises in connection with unloading some
trucks. Pickets were again at the premises. After some of the
trucks were unloaded at the west terminal Lovenbury opened
the gate to permit the trucks to move into an area between
the west gate and the west entrance. As he was-closing the
gate Franklin, who was picketing, came over and, according
to Lovenbury whose uncontradicted testimony is credited,
said, "Hey, we know that you are here alone and we are going
to take care of you." Lovenbury said he felt "threatened. This
was witnessed by a Fairbanks Trucking Company driver who
was standing about two feet from Lovenbury. There were also
about four other Fairbanks drivers in the immediate vicinity.
Although the incident standing alone may not be of great
- import it follows the events of the preceding day and appears
3 See Furniture Workers Local 309, supra, Local 140 United Furniture
Workers, 113 NLRB 815, and G & H Towing Co., supra.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to involve a threat in the presence of employees. I accordingly
find that it was violative of Section 8(b)(1)(A) of the Act.10
3. The November 23 incident
On November 23, trucks from Fairbanks Trucking Com-
pany stopped at the picket line. A driver came in to ask about
the pickets , saying he didn 't want to come in without permis-
sion of the Fairbanks dispatcher . Lovenbury called the dis-
patcher and they agreed that Lovenbury should ask the pick-
ets if the trucks could come in. Lovenbury testified he went
out and looked for Dykstra whom he found lying on the grass
at the corner of the east entrance . Lovenbury said as he
approached him Dykstra jumped up , took off his coat , started
to undo his tie, and clenched and put up his fists. Lovenbury,
who was about 4 or 5 feet away , testified he was startled and
backed up believing he was about to be involved in a fight.
Lovenbury stated a Gallo employee told him he also thought
there might be a fight . Lovenbury then stated to Dykstra,
"the only thing I want to do is talk to you." Dykstra 's version
was somewhat indefinite , but Dykstra said he remembered it
was a warm day and he may have been there without his shirt.
He denied that he did anything that was threatening. Im-
mediately after Lovenbury said to Dykstra that he wanted to
talk to Dykstra , a discussion took place between them. No
threats or actual physical action occurred . Dykstra did refuse
permission to cross the picket line.
On cross-examination Lovenbury testified "Yes, I moved
back a. little bit . I told him that I wanted to talk to him and
he didn 't appear like he was going to do anything so I started
talking to him." Lovenbury subsequently on redirect ex-
plained that he was apprehensive because of what had hap-
pened on the preceding Friday . Whether or not Dykstra took
off his coat and doubled up his fist it is clear that nothing else
occurred , that Dykstra did not seek to initiate a fight and in
fact did nothing . I am unable to conclude from this incident
that any violation occurred and I so find.
C. Conclusions
Previously I have set forth and found that the Respondent
violated Section 8(b)(1)(A) by Dykstra 's conduct in striking
Briggs , by Dykstra 's striking Medcalf, and by the threat to
Lovenbury in the presence of the Franklin drivers.
The General Counsel and the Charging Party contend that
such conduct also violated Section 8(b)(1)(B). Dykstra did
not know Medcalf was a supervisor at the time . The General
Counsel relies on the appearance of authority which I have
previously concluded was insufficient to warrant a finding
that Dykstra knew or had reason to know Medcalf s super-
visory status. As for Lovenbury whatever Dykstra may have
learned of Lovenbury 's and Medcalf's status after the alterca-
tion , the record does not establish whether or not Franklin
knew Lovenbury 's status at the time of the threat which I
have found violated 8 (b)(1)(A).
In any event , the incident involving Briggs is sufficent to
raise and resolve the issue of whether or not a violation of
8(b)(1)(B) occurred . I have found that Dykstra had previ-
ously dealt with Briggs and either knew or should have
known who he was. The issue of 8(b)( 1)(B) violation under
the circumstances herein appears to be a novel one. The
Board has found violations of 8(b)( 1)(A) with respect to inci-
dents of violence directed to supervisors in the presence of
employees or where employees were in the vicinity and could
be expected to be aware of such . There does not appear to be
any case directly dealing with the applicability of Section
8(b)(1)(B) to a situation such as herein.
10 See G & H Towing Co., supra, 591, 592.
It is clear that a union's refusal to meet with a representa-
tive selected by an employer would violate Section 8(b)(1)(B),
and that union conduct to coerce or compel an employer to
utilize only such person or persons as the union determines
as either its collective-bargaining representative or represent-
ative to handle grievances would be a violation of Section
8(b)(1)(B)."
Recently in a series of cases, the fining of supervisors by
unions under certain circumstances have been found to vio-
late Section 8(b)(1)(B). In San Francisco-Oakland Mailers
Union No. 18, 172 NLRB No. 252, involving union discipli-
nary proceedings against foremen for their asserted violation
of certain contract procedures involving hiring and overtime,
the Board stated:
We find rather, that Respondent's actions, including the
citations, fines, and threats of citation, were designed to
change the Charging Party's representatives from per-
sons representing the viewpoint of management to per-
sons responsive or subservient to Respondent' s will. In
enacting Section 8(b)(1)(B) Congress sought to prevent
the very evil involved herein-union interference with
an employer's control over its own representatives. That
Respondent may have sought the substitution of atti-
tudes rather than persons, and may have exerted its
pressure upon the Charging Party by indirect rather
than direct means , cannot alter the ultimate fact that
pressure was exerted here for the purpose of interfering
with the Charging Party's control over its representa-
tives. Realistically, the Employer would have to replace
its foremen or face de facto nonrepresentation by them.
In all the circumstances, therefore, we find that Re-
spondent's acts constitute restraint and coercion of the
Charging Party in the selection of its representatives
within the meaning of Section 8(b)(1)(B) of the Act.
In Toledo Blade Company, Inc., 175 NLRB No. 173, enfd.
437 F.2d 55 (C.A. 6), the full Board unanimously affirmed
Trial Examiner Scharnikow who found the union unlawfully
coerced an employer in selection of its bargaining representa-
tive by fining three supervisors who had allegedly violated its
contract with the employer when they worked with less than
a minimum crew.12 The Trial Examiner stated:
For Section 8(b)(1)(B) forbids a union's restraining and
coercing 'an employer in the selection of his representa-
tives for the purposes of collective bargaining or the
adjustment of grievances' and this protection of the em-
ployer's right to `selection' must be construed as protec-
tion not only the employer's continuing reliance upon
supervisors already selected, but his right at any time to
make and rely upon a selection of representatives from
an uncoerced group of such supervisors whose loyalty to
him has not been prejudiced and who he believes would
be peculiarly qualified to represent him in the handling
of grievances.
" See Local 274 Teamsters, 126 NLRB 1, 4, enfd. 284 F.2d 893, 896
(C.A. 2); Los Angeles Cloak Joint Board, 127 NLRB 1543,1544,1550-51;
(American Newspaper Publishers Association, International Typographical
Union), 86 NLRB 951, affd. on this issue 193 F.2d 782 (C.A. 7); Interna-
tional Typegraphical Union Local 38 v. N.L.R.B., 278 F.2d 6, 12 (C.A. 1),
affd. (4 to 4), 365 U.S. 705; Painters District Council No. 36, AFL-CIO, 155
NLRB 1013, 1017-18.
" The Board and the courts have also held expulsion of a supervisor from
a union because of his performance of his supervisory duties in administer-
ing a collective-bargaining agreement to be violative of Sec. 8(b)(1)(B) be-
cause such could well coercively influence the person chosen by the em-
ployer as its representative. See Dallas Mailers Union, Local No. 43 (Dow
Jones Co.) v. N.LR.B., 181 NLRB No. 49, enfd. 445 F.2d 730, (C.A.D.C.),
and 77 LRRM 2796 (C.A.D.C.).
TEAMSTERS, LOCAL 856 971
Further , the Board has held in other cases including San
Francisco Typographical Union No. 21, 192 NLRB No. 71,
citing Local Union 2150, International Brotherhood of Elec-
trical Workers, AFL-CIO (Wisconsin Electric Power Co.), 192
NLRB No . 16, that a union 's disciplinary proceedings and
fines of a union foreman who worked during the course of a
strike was violative of the Act in that such would necessarily
affect his ability to act on behalf of the employer as his repre-
sentative in either bargaining or dealing with grievances
should they arise . The Board extended the foregoing in Wis-
consin Electric Power Company , 192 NLRB No. 16, and Il-
linois Bell Telephone Company, 192 NLRB No. 17, where the
supervisors went to work during a strike and performed work
on so-called "struck work" or rank-and-file work but did not
engage in supervisory functions . The Board affirmed the Trial
Examiner's findings that the Respondent 's action "impinged
on the loyalty which Illinois Bell should be able to expect
from its supervisors who are the `employer 's representatives'
for the adjustment of grievances and therefore restrained and
coerced Illinois Bell in violation of Section 8(b)(1)(B) of the
Act." Involved were foremen who possessed the power to
adjust grievances even though they were not exercising such
at the time . Board Member Fanning dissented essentially on
the ground that the fines were not imposed on the supervisors
because of the manner in which they performed duties related
to their collective-bargaining or grievance -adjustment func-
tions , but because of their violation of an unrelated union rule
proscribing members of the union from performing struck
work during a strike . In essence, dissenting Member Fanning
could find neither a direct nor an indirect effect upon the
employer's right to use his supervisors either as collective-
bargaining representatives or with respect to the handling of
grievances.
In the cases where a supervisor enters premises to perform
work as a supervisor as well as other functions it would
appear difficult to separate the functions which he performs
and, accordingly , restraint and coercion of the supervisor
through disciplinary action , expulsion , or fines would appear
to necessarily involve potential restraint and coercion of the
employer's right to use the supervisor . In the instant case,
Briggs was functioning as a representative of the employer
with respect to collective bargaining and also grievances. His
action in advising driver Brown to do what he thought was
right , definitely related to a matter of contract application
and potential grievance.
The question is whether or not the situation is one within
the contemplation and ambit of Section 8(b)(1)(B). The
Union's action appears to be primarily directed toward keep-
ing the company from operating its trucks rather than dealing
with any issue involving grievances or bargaining representa-
tives . However , such was also true of the fines of union fore-
men for going to work during a strike . Such fines were di-
rected toward the success of a strike but they also inextricably
involved restraint or coercion of the employer's representa-
tive for collective bargaining and the handling of grievances.
Here the action against Briggs may have aided the Union's
objective of keeping trucks from leaving but it necessarily
inhibited and directly restrained Briggs from performing his
function as a representative of management in collective bar-
gaining and handling grievances . Although the Act has now
been in effect for 24 years , this appears to be the first instance
where a contention was raised that an incident such as here
involved violated Section 8 (b)(1)(B). However the failure to
so raise or apply this section does not preclude its being raised
nor negate its application."
Still, application of 8(b)(1)(B) herein raises a number of
questions. If a supervisor takes some action with respect to
employees or working conditions which could involve a griev-
ance, is such action of the supervisor free of all union reaction
which might amount to restraint and coercion? In my judg-
ment such questions should not be answered in the abstract
or in general but rather upon the facts of a particular situa-
tion. The disciplinary actions and fines taken or levied against
supervisors in the cases cited, (except possibly in the cases
involving only performance of "struck work"), made it diffi-
cult for an employer to maintain the required loyalty of his
supervisor in the performance of either collective-bargaining
or grievance functions. Similarly violence directed against a
management representative would affect his ability to per-
form his functions either as a representative for collective
bargaining or with respect to grievances even though it might
appear to be directed to another situation; i.e., stopping a
truck.
Where the necessary result of violence or threats in a labor
dispute would limit the ability of a management representa-
tive or supervisor to perform his bargaining or grievance
functions it would accordingly appear to be covered by the
rationale of the fine cases and therefore also constitute a
violation of Section 8(b)(1)(B) even though the violence or
threats were not directed toward compelling retention or
rejection of a particular bargaining representative or person
to handle grievances. Herein the violence was directed to-
ward Briggs as a management representative at a time when
he was engaged in performing functions as such. Inextricably
the violence might stop the truck, but it also necessarily
would restrain and coerce Briggs in performing his functions.
I accordingly find that the action taken by Dykstra against
Briggs was violative of Section 8(b)(1)(B) as well as Section
8(b)(1)(A)." For reasons set forth above, I draw no conclu-
sions as to alleged violation of Section 8(b)(1)(B) from any
actions involving Lovenbury or Medcalf.
In reaching the above finding of violation of Section
8(b)(1)(B) because of the Dykstra-Briggs incident I recognize
there are numerous situations where a union may engage in
coercive conduct that may in some way involve or affect
grievances. Whether or not such would violate 8(b)(1)(B) in
my opinion would depend on the particular facts. For in-
stance union action by way of a strike against an employer
arising out of a discharge of an employee or employees may
be said to have certain coercive aspects but it does not follow
that such would be violative of Section 8(b)(1)(B) when the
Act is looked upon as a whole including Sections 7 and 13.
The latter arguably might be said to be directed at the em-
ployer-yet conceivably affect a supervisor's ability to func-
tion." Another problem situation would involve union strike
action seeking the termination of a foreman whom the union
considered to be utterly and unreasonably arbitrary and un-
fair toward employees. While the existence of potential prob-
lems under the Act may lead to caution, it should not pre-
clude resolution of the applicability of Section 8(b)(1)(B)
herein.
In conclusion I am finding for the reasons set forth that by
Dykstra's conduct toward Briggs, Respondent violated Sec-
tion 8(b)(1)(B) of the Act.
almost a century. Also note the recent revival of certain pollution laws
passed about the turn of the century.
" Violence, of course, is per se coercive.
13 For instance , see the U.S. Supreme Court's application of the Civil " Most such cases, of course, would now probably be subject to arbitra-
Rights Acts of the 1860's to current issues even though not so applied for tion.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of the employers
described in section I above have a close , intimate, and sub-
stantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices it will be recom-
mended that it be required to cease and desist therefrom and
take certain affirmative action necessary to effectuate the poli-
cies of the Act.
Upon the basis of the foregoing findings and conclusions,
and upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Charging Party is engaged in and affects commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. As found above the Respondent has violated Section
8(b)(1)(A) of the Act.
4. As found above the Respondent has violated Section
8(b)(1)(B) of the Act.
5. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its business offices, meeting. halls and all other
places where notices to members are customarily posted co-
pies of the attached notice marked "Appendix."" Copies of
said notice to be provided by the Regional Director for Re-
gion 20 , shall, after being duly signed by representatives of the
Respondent be posted by the Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members and employees are customarily
posted . Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(b) Mail to the Regional Director for Region 20 signed
copies of said notices for posting by Gallo Sales Company, if
willing , in places where notices to employees are customarily
posted . Copies of said notices to be furnished by the Regional
Director for Region 20 shall after being duly signed by the
Respondent Union's official representative be forthwith re-
turned to the Regional Director.
(c) Notify the Regional Director for Region 20 in writing
within 20 days from the date of this Decision , what steps
Respondent has taken to comply therewith."
" In the event lthat the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
ORDER
Respondent, Freight Checkers, Clerical Employees and
Helpers Union, Local 856, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen , and Helpers of
America, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Gallo Sales Com-
pany by assaulting or committing acts of physical violence
upon supervisors or collective -bargaining and grievance rep-
resentatives of Gallo Sales Company in the presence of em-
ployees or under circumstances from which employees are
likely to become aware of such conduct.
(b) Restraining and coercing employees of Gallo Sales
Company and Fairbanks Trucking Company by threatening
supervisors of Gallo Sales Company in the presence of such
employees or under circumstances from which these em-
ployees are likely to become aware of such conduct.
(c) In any like or related manner restraining or coercing the
employees of Gallo Sales Company in the exercise of rights
guaranteed in Section 7 of the Act as amended.
(d) By physical assault upon its representatives or in any
like or related manner restraining or coercing Gallo Sales
Company in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of grievances.
is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees of Gallo
Sales Company by assaulting or committing acts of
physical violence upon supervisors or collective -bargain-
Ing and grievance representatives of Gallo Sales Com-
pany in the presence of employees or under circum-
stances from which employees are likely to become
aware of such conduct.
WE WILL NOT restrain or coerce employees of Gallo
Sales Company and Fairbanks Trucking Company by
threatening supervisors of Gallo Sales Company in the
presence of such employees or under circumstances from
which these employees are likely to become aware of
such conduct.
WE WILL NOT in like or related manner restrain, or
coerce the employees of Gallo Sales, Company in the
exercise of rights guaranteed in Section 7 of the Act.
WE WILL NOT by physical assault upon its representa-
tives or in,any like or related manner restrain or coerce
Gallo Sales Company in the selection of its representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
FREIGHT CHECKERS,
CLERICAL EMPLOYEES
AND HELPERS UNION,
LOCAL No. 856,
INTERNATIONAL
TEAMSTERS, LOCAL 856 973
Dated By
BROTHERHOOD OF
TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF
AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions -concerning this
notice or compliance with its provisions may be directed to
the Board 's Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047 , San Francisco , California 94102, Tele-
phone 556-0335.